Federal judge revokes retirement decision after Trump election

A federal judge has revoked his decision to take senior status, a sort of retirement, after it became clear that President-elect Donald Trump would get to nominate his replacement.

U.S. District Judge Algenon Marbley, a Clinton appointee who sits in southern Ohio, had decided to move to senior status a year ago but left the official transition date undefined. His office confirmed this week that he has rescinded his decision.

He had reportedly been awaiting a replacement judge to officially move to senior status, but President Biden had yet to name one because of disagreements between the state’s senators over who would get the nod.

With his senior status postponed, his seat is no longer vacant for a future president to fill, according to Jonathan Adler, a law professor at Case Western Reserve University, who wrote about the issue for Reason.com.

“Last week, Judge Marbley informed the White House of a change of plans,” Mr. Adler wrote. “Judge Marbley no longer intends to take senior status, presumably because he does not want Donald Trump to nominate his replacement.”

The judge’s office did not provide a copy of the letter to The Washington Times.

Mr. Adler wondered how many other judges might revoke their pending shifts to senior status. He said there are eight other judges who have announced an intention to become senior judges, but for whom no replacement nomination has been named.

Two of them, including Judge Marbley, had given no official vacancy date.

Another 11 judges have said they are leaving and replacements have been nominated by Mr. Biden. Those nominations will expire at the start of next year, barring speedy action by the Senate.

The power to nominate judges — and the GOP’s looming control of the Senate, and the ability to confirm Mr. Trump’s picks — looms large over the election aftermath.

Some liberal activists had suggested that Justice Sonia Sotomayor, 70, should retire immediately to give Mr. Biden a chance to name her successor. News reports have indicated she is ignoring those calls.

Judges have delayed retirements for other reasons in the past.

In 2018 Judge Michael Kanne, who sat on the 7th U.S. Circuit Court of Appeals, revoked his decision to take senior status. He reportedly had wanted his seat to be filled by a former clerk but, when it was clear that wouldn’t happen, the judge undid his retirement.

Kanne remained on the bench until his death in 2022.

In 2021, Judge Robert King of the 4th U.S. Circuit rescinded his plan to take senior status. Legal blogs speculated Judge King was miffed that Sen. Joe Manchin III of West Virginia, who was a Democrat at the time but since turned independent, sank the nomination of his preferred replacement.

And retired Justice Anthony M. Kennedy, in leaving the Supreme Court during Mr. Trump’s first term, urged the president to consider his former law clerk. Mr. Trump agreed, naming now-Justice Brett M. Kavanaugh.